Press Gallery Journalists Face Jail

There is a court case currently happening which may see senior political journalists from the Herald Sun, Michael Harvey and Gerard McManus, jailed for contempt of court.

Not surprisingly, most journalists consider the right to refuse to reveal a source as a fundamental component of a free press and freedom of speech. I have to say that my experience has made me less convinced about this. I agree there is a valid principle involved, but I am not so sure it should be incontrovertible.

I have no doubt that writers sometimes use anonymous ‘sources’ to make up or embellish things that fits the story they want (or have been told) to write. Less seriously, anonymous sources can be a shield for lazy reporting that gives unwarranted prominence to things which are little more than gossip, without taking the trouble to verify its accuracy.

However, that concern is more to do with whether a story is justified or facts are properly checked, rather than whether a source should be publicly revealed. The story in question before the Court does not fit into this category, as there is no dispute that the documents that the journalists quoted from were genuine, nor that the facts revealed were of genuine public interest and concern.

The journalists’ report quoted leaked documents which showed that the Howard Government planned to ignore almost all of the recommendations for improvements contained in a major review of veteran pensions and entitlements. The Government was consequently shamed into adopting many more of the recommendations, and it is fair to say that the report played a key role in making this happen.

The court case which has led to these journalists facing the threat of jail does not involve a matter of major public safety or national security. It is a legal witch hunt initiated by the federal government (and paid for by the taxpayer) to try to punish the whistleblower who is alleged to have leaked the documents.

In my view, whether or not a journalist should be required to reveal a source really boils down to how serious the matter is, and the competing public interest obligations. Where there are genuine matters of public safety or covering up of serious criminal behaviour involved, I think there is a case for journalists to be required to provide details, in the same way as I believe a priest or a doctor should be obliged to provide answers to questions from a Court in some circumstances.

None of that remotely applies in this case. The Government’s pursuit of this matter is about entrenching their culture of intimidation in the public service and further increasing the effectiveness of their Thought Police approach to controlling information. That journalists (or anyone else) should be threatened with jail just because they won’t cooperate with a whistleblower witch hunt is outrageous.

Some people may see it as ironic that I would defend Harvey and McManus in regard to receiving leaked information, as they were key writers of the front page story in the Herald Sun in December 2003 which contained leaked allegations about an argument I had with Liberal Senator Jeannie Ferris. That story was damaging to the Democrats and very hurtful for my family, (as the person who composed and planted the allegations knew it would be), but I can’t really blame the journalists for that. Although the story contained some exaggerations, they basically just reported the allegations they were given, which were framed specifically so it would cause damage when leaked (although the Herald Sun’s huge headline – “Mauled by a Wild MP” – was totally over the top, but you can’t blame journos for that).

Indeed, because I chose to handle the issue by just giving an unqualified apology for causing offence, rather than put my side of the story or raise counter-allegations, I didn’t really deal with the journalists about the story at all. It wasn’t until many months later, when Harvey and McManus approached me suggesting a meeting to “clear the air”, that it registered with me who it was that had written that story. I actually wasn’t sure what they were referring to until we met and they started talking about their coverage of the incident. Whilst the consequential media coverage over the following weeks and months gave me a major, first hand lesson in why politicians usually don’t provide unqualified apologies, I don’t blame Harvey or McManus for writing that initial story – it was my own foolishness, which others decided to make use of, which enabled that to happen.

Nor should these two people be threatened with jail as a consequence of the Government’s desire to intimidate public servants. I’m not sure if it would be possible to frame a law that could adequately balance the competing principles of protecting sources versus authority of the Courts, but basic common sense makes it obvious that this specific situation is unjust, unreasonable and unfair.

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8 Comments

  1. Andrew, no journalist whom I have ever dealt with has written a piece based on information I have provided via anonymous sources without checking with their own sources and the relevant people first. So if these individuals are a representation of the profession, I dont think theres as big an issue there as you make out.
    Ill say more on this in a post tomorrow.

  2. And how about McManus blatanly partisam misrepresentation of the Greens in the critical leadup phase to the 2004 election?
    The press council has rules against him, but know he is standing by the code of ethics as a justification?
    I have mixed feelings about McManus, but the blatant lies he perpetuated delivered the demise of the Democrats, The destruction of the Greens and the Howard Governments control of the senate.
    Funny the government that he put into power is now going to jail him?

  3. What about Andrew Bolt? remember him publishing Wilkies report which was a crime?
    Why wasn’t he jailed?

  4. The whole issue is very interesting and I think it is very difficult to strike a balance between when it is important for information to be protected (and therefore to have “leak” laws to act as deterrence) and for a right to freedom of information.
    I noted in today’s Australian there was an article (no link) about how Queensland Senator Brandis supports new laws to protect journalistic rights.

  5. QUOTE
    Of course politicians choose to be public figures and they know it opens them up to the likelihood of public criticism and general opprobrium. You do have to be responsible for your public actions and it is not unreasonable to expect a higher standard of behaviour from people who seek to be community leaders. But there is a difference between being subjected to appropriate criticism and having your personal character and private behaviour subjected to a tabloid style media flamethrower.
    END QUOTE
    When the Delegates at the Constitutional Convention Debates were discussing the suitability of candidates to stand for election they made clear that even a bankrupt could be a candidate, provided the bankrupt discharged the bankrupsy before taking up the seat. However, in Sykes v Cleary the spin doctor High Court of Australia judges twisted what was applicable and unconstitutionally denied Phil Cleary to be a member.
    See also my 30 September 2003 published book;
    INSPECTOR-RIKATI® on CITIZENSHIP
    A book on CD about Australians unduly harmed.
    ISBN 0-9580569-6-X
    No one expect that Politicians are, so to say, Angels. Neither is it an issue they may have convictions in their past, provided that they have paid their dues, so to say, as whatever the Courts may have decided was appropriate.
    Being it John Brogden making an error of judgment , being influenced by alcohol or not, is an issue that was rightly important to the general public where he was a member of parliament, but I view that Bob Carr’s comment against John Brogden were, so to say, over the top, and his remarkable about face after the alleged self harm by John Brogden questions why did Bob Carr not accept the apology in the first place.
    The right for the public to know was clearly provided for with the publication. With John Brogden publicly admitting to his errors of judgment, nothing more could have been gained from it. The man acted honourably to admit to it.
    We “the public” have a right to know the truth, but we also must accept that once we are made aware of the truth it is for the legal processes, if that is to eventuate,, to follow up. To crucify a politician further is beyond call.
    As the Delegates made clear, people make mistakes and paid their dues, and then should be allowed to enter parliament as like any other person. As such, the Delegates had a sense of “fairness”, to recognise that a person having made an error should not be cast aside for ever.
    QUOTE
    In my view, whether or not a journalist should be required to reveal a source really boils down to how serious the matter is, and the competing public interest obligations. Where there are genuine matters of public safety or covering up of serious criminal behaviour involved, I think there is a case for journalists to be required to provide details, in the same way as I believe a priest or a doctor should be obliged to provide answers to questions from a Court in some circumstances.
    END QUOTE
    A major problem I see with this is that the Court may have acted to enforce Government views, as being dictated, rather then what is constitutionally appropriate.
    Hansard 31-1-1898 Constitution Convention Debates
    Mr. WISE (New South Wales).-
    QUOTE
    It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to exercise his practical power of nullification of that law by refusing to convict persons of offences against it. That is a means by which the public obtains a very striking opportunity of manifesting its condemnation of a law, and a method which has never been known to fail, if the law itself was originally unjust. I think it is a measure of protection to the states and to the citizens of the states which should be preserved, and that the Federal Government should not have the power to interfere and prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow citizens conferred upon it by this Constitution.
    END QUOTE
    Therefore, the relevant State court ought to ignore what the desire of the Government might be but rather have considered if the State desires the journalist (whistleblower or whatever you want to call them) should reveal their sources.
    Hansard 17-3-1898 Constitution Convention Debates (CONCLUSION OF THE DEBATES)
    Mr. DEAKIN.-
    QUOTE
    What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite.
    Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.
    END QUOTE
    IT APPEARS TO ME THAT WE MUST GET BACK TO BASICS, AND JUDGES HAVE TO ACT INDEPENDENTLY AND NOT AT THE WHIMS OF A GOVERNMENT.
    The court must balance the right of a journalist to conceal the identity of their informant versus that of the protection of the general public. If there is a national security issue, that a journalist conceal details and it might jeopardize the lives of Australians then sure a Court would be in place to pursue details to be made known, even if in a closed court event. However, where it relates so some underhand conduct by the government to swindle the general public, then I view, the general public is better served to keep the identity of the whistleblower concealed. After all, this is daily used such as in those reporting child abuse, where the Department of Human Services does not reveal the identity of the person reporting the matter, without this persons consent.
    Journalist have an important position in this country as they are there to try to keep the general public informed. We have already enough problems with media sources willing to ignore the truth for their political bias, let not cripple real journalistic conduct by scaring possible whistleblowers coming forwards.

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